Monday, 2 June 2014

Having sex with others during the duration of a relationship can still
mean that you are in a de facto relationship, even if you consider that
you aren't, according to a recent Family Court decision, although as
Justice Tree stated, "although
there may have been some aspects of the parties’ relationship which some
may regard as unusual or unconventional."

In the case, known as Crowley and Pappas,
a gay couple had lived together in a de facto relationship from 1987
until 2005 or 2006, when they split up. Although they moved in together
in 2005 or 2006, the question was whether the de facto relationship had
resumed. If it had, as Mr Crowley maintained, then it continued until
2011. Mr Pappas maintained that they had lived as flatmates.

One of the problems with that approach was about their sex life. Whether
parties have sex is not the be all and end all about whether there is a
de facto relationship. There are many couples, after all, who do not
have sex, and many other couples who are not in a de facto relationship
who do have sex.

Mr Pappas said that Mr Crowley had previously been unfaithful, before they split in 2005 or 2006 , "seeing other men behind my
back whom he contacted through a gay chat site" and that in late 2005 he discovered that Mr Crowley
was seeking sex with another man. His evidence was that Mr Crowley said “I
want an open relationship.”
To this Mr Pappas replied “I do not
want an open relationship. That is not what a relationship is all
about....I was devastated. I did not want an open
relationship or to be with other people and I just wanted
to have a loving and
committed life partnership with [Mr Crowley]. [Mr Crowley] however expressed
to me that [he] did
not want this any more.”

Mr Pappas then said that about four weeks later, Mr Crowley brought
another man to their home and invited Mr Pappas to join in sex with
them, which invitation Mr Pappas declined. Nonetheless Mr Crowley and
the other man engaged in sex in front of Mr Pappas. After that event Mr
Pappas says that he told Mr Crowley
“[o]ur relationship is over. What just happened makes me feel physically
ill. All trust between us is gone. If you want an
open relationship you can have
one, but not with me.” Mr Pappas said that from that day onward, he
considered that their
de facto relationship was over.

Mr Pappas then says, after they started living together again:

[Mr Crowley] pressured and intimidated me into sleeping in the same bed as [him], and I succumbed, however there was absolutely
no sexual contact or
intimacy between [him] and I.I
did not want to share a bed with [Mr Crowley] and I locked him out of
the bedroom as often as I could and I would sleep
in other rooms to try to avoid
[him] whenever possible.
[Mr Crowley] became furious and would humiliate me whenever I broached the topic of
having separate sleeping arrangements and he
would become aggressive, storming
off and shouting. I was intimidated by [him]. I kept sleeping in the
same bed as [him]
to keep the peace and avoid [his] fury. I believe that [Mr Crowley] would physically harm me if I continued to
disagree
with [him].
When
[Mr Crowley] and I did share a bed [he]and I each slept away from
each other and there was absolutely no sexual contact
or intimacy between
us."

Mr Pappas did concede that there had been sex between them after they started living together again:

on one occasion where it was said that the
parties had jointly engaged in sex with a third person whilst
holidaying overseas.
Mr Pappas appeared to concede that event, but said
that on the night in question his drink had been spiked.

Mr Crowley volunteered the
names of two persons with whom he said both
he and Mr Pappas had engaged in
mutual sexual encounters, along with “several others whose names I
don’t know,”
which assertion was not thereafter squarely challenged
by Mr Pappas. Mr Crowley went on to say that he had opened an account
with a particular internet site in the mid to early 2000’s, and that both
he and Mr Pappas used it to find third parties
to bring into their
relationship for sexual encounters. Faced with such
specific assertions, Mr Pappas chose not to investigate or challenge them
further in his cross-examination of Mr Crowley.

Justice Tree stated:

The
principal concern of Mr Pappas appears to be that the parties did not have
a mutual commitment to an exclusive, monogamous,
sexual relationship. Whether by
virtue of that or otherwise, he further said that he had no mutual commitment to
share his life with Mr Crowley, because in fact he was planning, upon
achieving financial security, to “make a stand, after which it was going
to be my rules from now on.” Leaving aside that his evidence as to that
matter was not challenged, in my opinion Mr Pappas did indeed intend, after
2005, to ensure that he became financially independent of Mr Crowley My view
is that he was so hurt
by his long-time partner’s desire to have a
non-monogamous relationship, that he wanted to be able to wholly separate from
him – emotionally, physically, financially and otherwise – in the
event that circumstances in the future inclined him
so to do.

However
that finding does not preclude Mr Pappas nonetheless being in a de
facto relationship. It is equally consistent that Mr Pappas was keeping
his options open to “escape” the relationship,
if things went badly,
but also to continue the relationship if things were tolerable. Indeed, such a
strategy has a degree of common
sense to it.

No comments:

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.